The dispute relates to 52 kanals and 10 rnarlas of land situate in Chak No. 456/0. B, Tehsil & District Jhang, which was leased out to the petitioner under Temporary Cultivation Scheme for a period of five years w. e. f. Rabi 1968. On the expiry of this period, the lease was extended for a period of two years and then again for another period of five years (from Kharif 1975 to Rabi 1980). On 31-12-1979, petitioner filed before Collector Jhang an application for grant of proprietary rights in the land in question. It is alleged that the aforesaid application was yet pending when the D. C. By his order dated 5-4-1980 allotted the said land to Mst. Munawar Begum respondent No. 4 in lieu of the land allotted to her in 1956 under Grow More Food Scheme which subsequently in 1962 was included in the schedule of auction. Appeal filed by petitioner against the said order was dismissed on 26-4- 1981 by the Additional Commissioner. Revision before the Member Board of Revenue met the same fate. The period of petitioner's lease expired in Rabi 1980. Petitioner has, however, challenged the above orders by means of this writ petition on the ground that he was entitled to grant of proprietary rights in the land in question and, therefore, the said land could not have been allotted to Mst. Munawar Begum.
2. The appeal and the revision filed by petitioner were dismissed on the ground that the petitioner was the owner of 126 kanals and 19 marlas and vide mutation No. 585 he gifted 55 kanals and 17 marlas of land of Chak No. 453/1. B., Tehsil & District Jhang to his sons through deed dated 22-6- 1978 and vide mutation No. 490, he gifted 71 kanals and 2 marlas of land of Chak No. 456/1. B., Tehsil & District Jhang to his sons through registered deed dated 25-6-1978 and that lease was got extended fraudulently by the petitioner as he was not entitled to the extension on account of being owner of more than 4 acres of land and was, therefore, not entitled to grant of proprietary rights in the land in question.
3. The learned counsel for petitioner has, however, established by production of necessary certified copies that true facts were that;-
(i) on the basis of registered Tamlik Nama executed by petitioner's father on 22-6-.1978 in favour of his three sons in equal shares, petitioner got 55 kanals and 7 marlas of land of Chak No. 456 J. B..
Tehsil & District Jhang, as shown by mutation No. 585 attested on 28-5-1979.
(ii) on the basis of another registered Tamlik Nama executed by petitioner's father on 25-6-1978 in favour of his three sons in equal shares, petitioner got 52 kanals and 9 marlas of land situate in Chak No. 453 J. B. Tehsil and District Jhang as shown by mutation No. 490 attested on 27-9-1979.
(iii) on the basis of registered purchase deed dated 19-3-1979, petitioner purchased 18 kanals and 13 marlas of land of Chak No 453 J. B., Tehsil & District Jhang as shown by mutation No. 496 attested on 7-11-1979.
(iv) by means of Mutation No. 503 entered on 12-12-1979 and attested on 3-1-1980 petitioner transferred by way of Tamlik 71 kanals and 2 marlas of land obtained by petitioner as shown above in Chak No. 453 J. B., Tehsil & District Jhang to his sons.
(v) by means of Mutation No. 599 entered on 12-12-1979 and attested on 3-1-1980 petitioner transferred by way of Tamlik 55 kanals and 17 marlas of land obtained by petitioner as shown above in Chak 456. J. B. In favour of his sons.
Learned (counsel for respondent No. 4 has conceded the correctness of above facts. These facts will, therefore, be taken as the basis for decision of the case.
4. Since the registered deeds are operative from the date of the execution, it is clear from the said facts that by 19-3-1979, petitioner had become owner of 126 kanals and 19 marlas of land and he transferred away all the said land by way of Tamlik to his sons and divested himself of the, same on 3-1-1980.
5. Learned counsel for the petitioner has contended, that though as per clause 3 of notification No. 3215-79/3973-C/II, dated 3-9-1979, only landless lessees or owners of less than subsistence holding in continuous cultivating possession of leased land since before Kharif 77 are eligible to purchase of proprietary rights, the said eligibility is to be determined not with reference to position of ownership as available on the date of notification viz. 3-9-1979 but with reference to the factual position of ownership of lessee as available on the date of exercise of option by the lessee to purchase land provided for in clause 6 of said notification, because under clause 10 of the said notification, price of land payable was to be calculated from date of option exercised by the lessee-grantee. He further submits that petitioner had made statements before Revenue Officer respectively on 12-12-1979 and 20-12-1979 in mutation No. 503 of Chak No. 453 J. B. And mutation No. 456 of Chak No. 456 J. B. That he had by way of Tamlik made his sons the owners of the land involved in the said mutations and the actual transfer by him had taken place on these days and case bad been adjourned for payment of fees and only a formal order was passed subsequently on 3-1-1980 attesting the said mutations. On the basis of this data, he contends that though petitioner was owner of 126 kanals and 19 marlas of land on 3-9-1979, the date of issue of said notification, he had divested himself of all the said land by 31-12-1979 when he exercised option under clause 6 of said notification to purchase land and as such he being landless on 31-12-1979, was entitled to grant of proprietary rights.
6. For proper appreciation of the point raised, the relevant provisions of the said notification are quoted below in extenso :-
(1) General.-(a) The Government is prepared to grant proprietary rights in the land under temporary cultivation leases to those eligible lessees who are prepared to fulfil these conditions; Provided that no lessee shall be entitled as of right to the purchase of proprietary rights and the Board of Revenue retains its absolute discretion in the grant of such rights and selection of grantees.
(3) Eligibility.-Any lessee holding State land on temporary, cultivation lease who is either landless or owner of less than a subsistence holding and has been in continuous cultivating possession of the leased land since before Kharif 1977 may be eligible for the purchase of proprietary rights in such land-
(i) in the case of a lessee who is landless up to a subsistence holding; and
(ii) in the case of a lessee who is owner of less than a subsistence holding; up to that area by which he falls short of a subsistence holding.
(4) Ineligibility--(a) Any lessee who is owner of a subsistence holding or does not cultivate the land himself shall not be eligible for the purchase of proprietary rights in the leased land and shall surrender it peaceably to the Collector immediately on the expiry/termination of his lease.
(6) Option-Any lessee who may be eligible for the purchase of proprietary rights under these conditions shall exercise his option in writing for acquisition of such rights in the land under his possession by or before 31st December. 1979.
(10) Price of Land.-(a) The grant of proprietary rights shall be subject to the payment of price of the land at the market value to be calculated from the date of option exercised by the grantee in accordance with clause 6 above.
7. I have read the above provisions again and again and find myself unable to accept the contention raised. Clauses 3 & 4 are in the present tense and read together clearly show that a person asking for grant of proprietary rights in the land in his cultivation under temporary'" cultivation Scheme should be landless or owner of landless than subsistence holding on the date when the said notification was issued i.e. 3-9-1979. I am fortified in this view of mine by decision of Division Bench of this Court consisting of Mr. Justice Sajjad Ahmad Jan and Mr. Justice Anwar-ul--- Haq (as then they were) in case of Shahab Din v. M. B. R. (Colonization) Lahore and another PLD 1964 Lah. 372wherein it was held that Shahab Din having obtained 15 acres of proprietary land in the year 1954 was not eligible to obtain land under Ejected Tenants Scheme of 1956, according to which tenant owning three acres or more of agricultural land was ineligible for grant under the said Scheme. The eligibility or ineligibility in that case was considered with reference to the factual position of the ownership of allottee as available on the date and year of promulgation of the scheme of 1956. There is no doubt that under clause 10 as it stood originally, market value of the land was to be calculated as on the date of option exercised by the lessee but then this provision cannot be read into or incorporated in clause 3 which is a separate provision laying down the conditions of eligibility of a lessee to acquire proprietary rights in land under lease with him. The option under clause 6 of the notification was to be exercised by a person who is originally eligible for the purchase of proprietary rights under the conditions laid down in clause 3. It is obvious that eligibility of a person to get proprietary rights must exist prior to exercise by him of his right of option to purchase land. Moreover the fact that the special provision was made in clause 10 for calculating the market value from the date of the option exercised by the lessee, rather shows that the general rule applicable in all other matters including the satisfaction of the conditions of eligibility under clause 3 is that position as available on the date of issue of the notification is to be taken into consideration. Clause 10 (a) was subsequently amended by notification No. 675-80/877- CLI dated 11-2-1980 and provision for payment of market price calculated from date of exercise of option was substituted by price calculated at the uniform rate of Rs. 100 per produce index unit for total produce index unit of said land calculated on the basis of P. i. Units as stood fixed for cultivated Barani Awwal and superior quality of irrigated land on the date of exercise of option by the grantee. However, nothing in the amended clause 10 (a) detracts from the force of reasons given above. If for the purpose of calculating the price of land, the total units of the land are to be calculated on the basis of suits as stood prescribed for an acre of land on the date of exercise of option under the said notification, that has nothing to do with the conditions of eligibility under clauses 3 & 4 of notification and the question as to whether the said conditions stand satisfied in case of a prospective purchaser has to be seen with reference to the date of issue of notification and not the date of exercise of option by lessee. In that view of the matter, I am constrained to hold that in determining whether a lessee under temporary cultivation scheme is eligible for grant of proprietary rights under clause 3 of the said notification, position of his ownership of land as available on 3-9-1979, the date of publication of notification is to be seen and not his position as available on the date of exercise by him of the option to purchase proprietary rights in the said land.
8. Now the admitted position is that the petitioner was the owner of 126 kanals and 19 marlas of land on 3-9-1979, the date-of the issue of the notification. Therefore, under clauses 3 & 4 of the said notification, he was not entitled to the grant of proprietary rights in the land in question. His lease having expired in Rabi, 1980, he was bound under clause 4 (a) of the said notification to surrender the leased land to the Collector immediately on termination of his lease. No exception could, therefore, be taken by him to allotment on 5-4-1980 of said land to respondent No. 4, Munawar Begum as alternative land under Grow More Food Scheme.
9. In view of the above there is no force in this petition, which is dismissed. There will, however, be no order as be costs.